Since the 1940’s, the National Labor Relations Board (“the Board”) has held the position that mandatory meetings with employees where the employer expresses its views on unions, typically referred to as “Captive Audience Meetings,” were permitted other than during the 24-hour “cooling off period” immediately preceding a union representation election.
On November 13, 2024, there was a sea change in the Board’s position. It determined, in Amazon.com Services LLC, that Captive Audience Meetings are inherently coercive, interfere with employees’ right to support a union, and are illegal under the National Labor Relations Act (“the Act”). The Board’s General Counsel, its top enforcement officer, identified advocating for this change as a priority in 2022.
By making Captive Audience Meetings illegal, the Board made it more difficult for employers to combat unionization efforts. Employers can still hold meetings; however, they cannot require attendance. While important, the impact of the decision may be short-lived. The Board currently has three Democratic members and one Republican member with one seat vacant. The vacant seat will likely be filled shortly, and the Board will presumably maintain a Democratic majority until mid-August 2026. At that time, we expect the Board will return to the position it held for roughly the past 80 years. However, because the Board rarely issues regulations, we likely won’t know if the Board will return to the former rule until a test case gets before the Board, and is decided, which could take years.
Amazon.com is significant not only because it removes a communication tool away from employers. When initiating meetings, employers need to be clear that they are not mandatory. Should the Board determine that an employee-employer meeting that the employer did not intend to mandate could reasonably be construed as mandatory by employees and is, therefore, an unlawful Captive Audience Meeting, it could order the employer to recognize and bargain with the union without an election. See our November 18, 2024 Workplace Law Update, Beware of Union Organizing Pitfalls, for more information.
DO NOT RISK IT. Before holding an employee meeting that might be alleged to be mandatory or “captive,” employers should contact experienced traditional labor counsel.
